Tag Archives: McClain doctrine

The legal dispute over an ancient Khmer statue at Sotheby’s could have lasting implications for the sale of ancient art in the United States.

For those catching up on the case: Sotheby’s New York was poised to put the 10th century temple warrior up for auction in 2010 with an estimated value of $3 million. But shortly before the bidding started, Cambodia claimed the statue had been looted from the ruins of a Khmer temple at Koh Ker, where the statue’s feet were found in 2007. In April, federal agents sought to seize the statue on behalf of Cambodia. A judge ordered the statue to remain at Sothebys while the two parties argue the case in court. Sotheby’s filed a motion to dismiss in June and now the government has responded, attaching declarations from two legal experts to support its case. (See below for the complete filings.)

At the heart of the case are familiar questions: What level of evidence is needed to establish when and how an object was illicitly removed from its borders? What amount of due diligence must a museum, collector or auction house conduct to defend an acquisition? When can a looted object in the US be seized by the government and returned to its legal owner? And can those who possess and trade looted antiquities be found criminally liable?

The feet of two ancient sandstone statues were left behind by looters at a temple in Koh Ker, Cambodia. One statue is now at Sotheby’s, the other at the Norton Simon Museum in Pasadena.

These questions have only occasionally been brought before federal courts in the United States, so the case law in this area is relatively thin. A handful of key cases have established the current legal regime, which holds that an object looted from a country with an enforced patrimony law can be considered stolen property under US law. Someone who knowingly buys or possesses a looted antiquity can be criminally charged, and the object can be taken by the government and returned to its rightful owner.

This legal regime has not prevented museums from buying suspect objects, but it has been an invaluable deterrent to the open sale of loot and helped raise the bar on acquisition standards in recent years. Given its shaky foundation, however, any new case law on these issues could alter the status quo significantly. A victory for the government in the Cambodia case might lead to a further tightening of the rules around acquisitions and bring about more cautious collecting practices for collectors and museums. A victory for Sotheby’s, on the other hand, could encourage more brazen acquisitions of looted art.

The point is illustrated in the case filings themselves. Until recently, the leading case on the civil forfeiture of ancient art was Steinhardt, which established among other things that false declarations on import documents could allow the government to seize an object under civil law. But the recent dispute over a mummy mask at the St. Louis Museum of Art appears to have undermined the authority of that ruling, which is cited neither by the government nor Sotheby’s in the Cambodia case. Instead, both sides refer to the St. Louis case, US vs. Mask of Ka Nefer Nefer, in which the judge has found twice that the government presented insufficient evidence that the mask was stolen.

Here’s how Sotheby’s quotes the judge in that case: “[t]he Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally.”

The Cambodia case, however it is decided, will be cited in similar cases going forward. With that much at stake, the court filings are worth reading — even for those of us who are not lawyers. In the past, we’ve posted the government’s original complaint here, and the flurry of filings over the statue’s seizure here.

In June, Sotheby’s filed its first significant response to the case in a motion to dismiss:

Caveat and Hat-tip: We’re not lawyers and don’t even play one on TV. For insightful observations about these issues from a legal expert in this area, read Rick St. Hilaire’s indispensable blog: http://culturalheritagelawyer.blogspot.com/

Whenever we talk with Arthur Houghton — the Getty’s former antiquities curator who we’ll be on stage with this Saturday at the Walters Art Museum in Baltimore — he asks a provocative question: did he or any other museum official violate U.S. law while buying looted antiquities?

The short answer, of course, is that no museum official at the Getty or elsewhere has been charged with, much less convicted of, a crime under US law. The real question, then, is: might they have?

Here’s an attempt to answer that hypothetical, using Houghton’s own writings while at the Getty Museum. As part of our “Hot Docs” series, we’ve annotated and posted transcriptions of the key documents via links below.

The Getty bought the kouros in 1985 for $10 million. Today it is believed to be fake.

Getty officials certainly knew they were buying objects from an antiquities market awash in illicit material. In April 1984, while the J. Paul Getty Museum was considering the acquisition of its infamous statue of a kouros, Houghton told the Getty’s outside counsel: “Probably 95% of antiquities on the market were found in the past three years. The only way one would obtain them was if one did not ask the specific question that would elicit the specific answer about provenance that made the material unbuyable.”

Days later, Houghton elaborated on the risks of acquiring such objects in a memo on the law to museum director John Walsh. Law enforcement authorities had made clear that under their reading of current law, museum officials could be criminally liable for acquiring such objects, Houghton wrote. “No action will be taken against the importer unless it is clear that the importer acted with certain knowledge that the material had been illegally exported from a country which had appropriate national ownership in place. If Customs believes that the importer had such knowledge, they could seek criminal penalties against the importer.”

The criminal law Houghton was referring to was the National Stolen Property Act. In the 1977 case US vs. McClain, a federal appeals court in the 5th Circuit had found that buying antiquities illegally exported from a country with a national patrimony law was equivalent to buying stolen property under US law. US government officials had made clear that this “McClain doctrine” could be applied well beyond the 5th Circuit. In effect, there was no difference between buying a looted antiquity and a hot car. The government could seize the stolen property and criminally charge those who imported it, Houghton wrote.

At the time, the Getty was buying such objects at a breakneck clip. As Houghton wrote a month later to deputy director Deborah Gribbon, “No other department of ancient art has an acquisition program as intense as ours nor one which, if it is to be maintained, requires such frequent contact with market sources.” In fact, the Getty was buying objects far faster that its staff could document them. “Some 30% of the collection has not been photographed, a significant number have no accession number, and there is no file by subject matter or chronological order to help find things,” Houghton wrote.

Harold Williams, CEO of the J. Paul Getty Trust

Word of the Getty’s potential legal exposure made its way to Harold Williams, the CEO of the Getty Trust and a lawyer who had run the SEC. Williams wrote to Walsh about the troubling rumors he had heard about the antiquities market: “Indeed, much of the conversation is to the effect that 90% of the objects on the market are presumed to have been recently come out of Italy or Greece.” Williams wanted answers, and Walsh punted to his “ethical tutor” Houghton, who was asked to explain how the museum could continue to acquire undocumented antiquities under such conditions.

John Walsh, Getty Museum Director

Houghton’s answer came in the form of another memo, this one entitled “Ethics and the Acquisition of Antiquities.” It lays out the two views on collecting undocumented antiquities: those of archaeologists, who favor restrictions, and those of curators, who feel a “special obligation” to acquire objects. In the end, Houghton concludes that the Getty is justified in the acquisition of undocumented antiquities because it is better prepared that most museums to protect, conserve and display these objects.

But how to navigate the law and the McClain Doctrine, which suggested such acquisitions could violate US law? Houghton’s solution was “optical due diligence.” In essence, the Getty would create the appearance of propriety and high ethical standards while buying what it wanted, being careful to avoid the “certain knowledge” of an object’s illicit origins that could land a museum official in jail.

Cult Statue of a Goddess (Aphrodite)

Houghton resigned from his post in 1986, but his rationale for continuing to collect undocumented antiquities became the basis for the Getty’s new acquisition policy the following year. That policy change allowed the Getty to buy a statue of Aphrodite despite clear signs it had been recently looted from Southern Italy.

Did Getty museum officials have the “certain knowledge” about the Aphrodite required for criminal charges under the McClain Doctrine?

Walsh’s handwritten notes from a meeting with Williams that September would suggest they did: “We know it’s stolen…Symes [the dealer offering the Aphrodite] a fence.”

Today, both men claim the conversation was hypothetical, not about the Aphrodite. Would that defense have held up in criminal court? Thanks to the statute of limitations, we’ll never know.

We look forward to seeing Arthur again on Sat, October 29th at the Walters Museum of Art in Baltimore. Details are here.